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Lame-duck limits on early voting - and the arguments for them - resemble ones already rejected by a judge

MADISON - Gov. Scott Walker and other Republicans are claiming lame-duck legislation would make early voting uniform across the state — a contention that was rejected by a federal judge two years ago.

That same judge is expected to weigh in on the matter again if Walker signs the early voting restrictions in the coming weeks.

Republican lawmakers included the early-voting limits in lame-duck legislation they sent to Walker last week that would also curb the powers of Walker’s Democratic successor, Tony Evers, and incoming Democratic Attorney General Josh Kaul.

Wisconsin had a record round of early voting for a midterm election last month, helping Democrats win every statewide office. The legislation would limit early voting to a maximum of two weeks.

Now, local governments can offer as much early voting as they want. Madison and Milwaukee — the state’s largest cities and its Democratic strongholds — provided six weeks of it this fall. Smaller communities allowed early voting for much shorter periods.

The legislation “just says early voting should be uniform across the state of Wisconsin so that voters in one jurisdiction don't have two or three times as much time to vote early as someone does in another jurisdiction,” Walker told reporters Tuesday. “To me, that's about fairness."

But under the legislation, early voting hours would still be decided by local officials — and thus would vary from one community to the next.

U.S. District Judge James Peterson in Madison seized on that point in 2016 when he struck down a similar limit on early voting approved by Walker and GOP lawmakers.

The claim that the restriction was meant to make early voting rules uniform is “hard to credit” because it “still tolerates disparities in voting hours among Wisconsin municipalities,” Peterson wrote in his 119-page decision.

“The purported consistency is illusory,” he wrote. “Rather than achieving uniformity, the provisions governing the hours for in-person absentee voting preserved great disparities from town-to-town.”

Peterson concluded the earlier limits put burdens on African-Americans and Latinos living in the state’s largest municipalities and were “motivated in part by the intent to discriminate against voters on the basis of race." The justification for the limits was “meager” and lawmakers designed them “to secure partisan advantage,” he wrote.

“Ensuring equal access to the franchise is certainly a valid state interest, probably even a compelling one,” he wrote. “But stifling votes for partisan gain is not a valid interest. And Wisconsin’s approach in this instance was backward: rather than expanding in-person absentee voting in smaller municipalities, the state limited in-person absentee voting in larger municipalities. By doing so, the state has imposed moderate burdens on the residents of those larger municipalities.”

"Early voting is great, it just should be uniform,” said Walker, who urged his supporters to vote early for him in the November election.

Walker has signaled he is open to much of what's in the lame-duck legislation but has said he would likely use his partial veto powers to strike out portions of it. He hasn't specifically said what provisions he might remove.

The new limits differ slightly from the ones that were struck down by Peterson and Republicans hope the differences are enough to help them survive a court challenge.

The previous limits restricted early voting to two weeks ending the Friday before Election Day. During the early voting period, voting could occur only in clerk’s offices and only on weekdays between 8 a.m. and 7 p.m.

The new restrictions would allow early voting for two weeks, up until the Sunday before Election Day. Voting could occur any time during those two weeks, including on weekends and at night, and clerks could conduct early voting at multiple locations, such as at libraries.

In all, communities could host up to 13 days of early voting under the new limits, compared to 10 days under the limits that were struck down.

The lawsuit that resulted in the earlier limits being struck down was brought by two liberal groups, One Wisconsin Institute and Citizen Action of Wisconsin Education Fund. Their attorneys have said they would likely ask Peterson to halt the new limits if Walker signs them into law.

The lawsuit challenged numerous other election laws and succeeded in striking down some of the others. As part of his ruling, Peterson upheld the heart of the state’s voter ID law but ordered the state to make sure it got voting credentials to people who don’t have birth certificates or face other challenges in getting IDs.

The case is now before the 7th Circuit Court of Appeals, which heard arguments in that case and a related one more than a year and a half ago. That’s an unusually long time for that court to go without issuing a decision, according to court observers.

If the new limits are adopted and challenged in court, they would first be considered by Peterson. From there, the challenge could move on to the appeals court.

Opponents of the voting restrictions would want to put a challenge to the new restrictions on a fast track. The next election is in February when there is a primary for state Supreme Court and local offices.

The April election is the next one after that. Neil Albrecht, executive director of the Milwaukee Election Commission, said the state's largest city would likely have four weeks of early voting for the April election if there are no limits in place.

Kaul, the incoming Democratic attorney general, as a private attorney represented One Wisconsin and Citizen Action in the lawsuit challenging Wisconsin’s election laws. He has said he would recuse himself from the case as attorney general and let civil servants handle the defense of the state’s election laws.